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The above study constitutes a theoretical synthesis of the jurisprudence of the High Court of Cassation and Justice of Romania from the last years in the field of legislation regarding the restitution of the immovable assets abusively taken over by the State in the period comprised between 1945 and 1989; of the interpretation of contracts in consideration of the real will of the parties; of the proxy’s fault in the mandate contract and of certain civil procedure issues, taking into account also the provisions of the new Romanian Civil Code (Law No. 287/ 2009, as amended by Law No. 71/2011), which has recently come into force (as of October 1, 2011). -
Lately, within the penal lawsuit – in the stage of its prosecution and judgment – due to the impasse of producing evidence facing the prosecution, since the prosecutor issues solutions for not initiating the penal prosecution without factual or legal grounds, with regard to the delator that perpetrated deeds provided by the penal law and closely connected with the crimes for which they ordered the judgment of others, they heard and then obtained that such delators be heard as witnesses and grounded its accusation on their testimonies. The clarification of the capacity in which a delator may be heard within a penal lawsuit appears, therefore, necessary both from a theoretical point of view, and from a practical point of view, and the authors’ approach is trying to respond to this necessity.
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The transfer of procedures in penal law represents a form of international judiciary cooperation, which entails the voluntary and provisional waiver by a State of its exercise of its own penal jurisdiction in favor of another State. The authors’ approach targets the determination of the legal treatment of the transfer of procedures in penal law, with a special reference to the procedural acts entailed by the delivery and takeover of penal procedures, as basic forms of such institution, as well as of its legal effects.
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The system of penalties, although it marked a progress in the evolution of the Romanian penal law, however, if it is critically examined, it evidences the small number of major penalties and, especially, their emphatically repressive character. In this study, the author makes an analysis by comparison of the system of penal sanctions in the new Penal Code as compared to the current regulation, as well as in comparative law. Another issue relates to the impact of normative provisions on the judiciary individualization of penalties with reference to the individualization criteria and the appreciation margin acknowledged to the judge. The author also states that it is useful that the relevant penal regulations should provide the criterion of proportionality for the judiciary individualization of penalties.
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According to Art. 244 para. (1) of the current (Romanian) Civil Procedure Code, the court may suspend trial if: – the settlement of the case depends, in full or in part, on the existence or inexistence of a right that forms the object of another trial; – criminal prosecution was initiated for a crime which would have a decisive influence on the decision to be issued. The author examines this text by correlation to Art. 248 et seq. of the same Code regulating superannuation. In this context, the author believes that the request to reopen the suspended case according to Art. 244 of the Civil Procedure Code for the re-initiation of trial is not a procedural act which must be fulfilled by the court ex officio. Moreover, the court of law may only re-place the case on the dockets to ascertain superannuation, on which occasion it shall have to grant trial expenses to the defendant or respondent in appeal (as applicable), which requests or produces proof of such expenses.
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The above study makes a detailed analysis on the precise meaning of Art. 821 para. (1) of Law No. 161/2003, according to which “The deputy or senator who, during the exercise of term of office of a member of Parliament, desires to exert the profession of attorney at law may not plead in the cases judged by the courts of law or tribunals, nor may they provide legal services to the prosecutors’ offices attached to such courts of law.” In this context, the author concludes that the legal limitation of the interdiction mentioned only under the “pleading” in front of the courts of law and tribunals (or granting the legal assistance to the prosecutor’s offices attached to such courts of law), since the reasons which imposed the regulation under discussion are identical also in the situation of the cases which are judged by higher courts of law (Courts of Appeal, High Court of Cassation and Justice).
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In this study, the author, solving a controversy (generated by the imperfection of the relevant regulatory acts) reaches the conclusion (based on a rational interpretation) that the prefect has the legal competence to exert the administrative guardianship control also on the decisions issued by the president of the county council, whether or not the latter is considered as an authority of the local public administration.
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This study analyzes the situation – which is not expressly regulated by the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms – in which, after the claimant notified the European Court of Human Rights (and until 1998 the Commission within such Court), the respective claimant demises. The study takes into account a rich history of relevant cases, resulting from the case law of the Court/Commission. In the end, after examining the mentioned cases, a series of conclusions may be briefly deducted.
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Starting from the case of Vergu vs. Romania, recently settled (January 11, 2011) by the European Court of Human Rights, the author, in light of Art. 13 of the European Convention on Human Rights, discusses the issue related to the right to a prior effective recourse with the internal (national) court of law, a sine qua non prior condition for notifying the Strasbourg Court, concluding that the European court of law (must make the severe application of the subsidiary nature principle. Only under entirely exceptional cases, with grounded motivations, in a circumspect and entirely isolated manner, may the Strasbourg Court release the claimant from its obligation to exhaust the internal means (of effective recourse with the national court).
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In this study, the author examines Law No. 133/2011 for the amendment of several provisions of Law No. 360/2002 regarding the policeman’s status. The author has also certain positive appreciations on these amendments, but she primarily retains a series of negative sides on Law No. 133/2011, especially by the fact that the mentioned law provides that “the procedure and cases for modifying and/or suspending the policeman’s business relations shall be established under an order issued by the minister of administration and internal affairs”, which is, in the author’s opinion, contrary to the principles of the Romanian Constitution.
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In this study, the author – by making a comparative analysis of the legal treatment of the spouses’ common assets obtained in the course of marriage in the new Romanian Civil Code (Law No. 287/2009, as amended by Law No. 71/ 2011 and in force as of October 1, 2011) – issues a series of own interpretations in the field, including with regard to the spouses’ tacit mandate within the legal joint property of assets according to the regulations of the Romanian Civil Code, also underlining a series of negative aspects (with regard to common assets) contained in the regulations of the new Code.
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The new Romanian Civil Code advances a new conception regarding the divorce, essentially different from the conception with which we were familiar under the legislation that is (still) in force. Analyzing the provisions of Arts. 373-404, contained in Book II, “Family” of the new Civil Code, a note must be made of the non-dissimulated liberal “philosophy” on divorce, particularly expressed through the following features: multiplication of the reasons for divorce – in the sense that divorce by the spouses’ agreement may also take the form of a request accepted by the other spouse, the de facto separation is a distinct reason for divorce, allowing for the dissolution of marriage including out of the exclusive fault of the claimant spouse’ the “de-judiciarization” of the divorce procedure – by the fact that marriage termination does not fall under the exclusive competence of the courts of law, in the case of divorce by proper consent, alongside the judiciary means, being also available the means of administrative or notarial procedure, the latter being accessible even in the presence of spouses’ underage children, the limitation of post-divorce legal issues – by encouraging the settlement of “all issues” related to marriage, patrimonial or non-patrimonial, in the relation between spouses, as well as in the relations between parents and children, preferably by the spouses’ agreement of will and, inasmuch as possible, “in one package”, on the occasion of marriage termination. This study is dedicated to these features. In the introductory part (§1), we propose a systematization model for divorce cases, then we analyze the forms taken by divorce according to the reason for marriage termination (§2), making a distinction between divorce as a remedy – by the spouses’ agreement, at the request of either one of them accepted by the other spouse, for health reasons – and divorce by fault – for reasons that are not provided by the law, due to the de facto separation which lasted at least 2 years.
